TMI Blog1963 (6) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner and was eventually appointed Assistant Commissioner of Police on 7-5-1948. The petitioner passed the Departmental Examination in higher standard and the result was declared by the Public Service Commission in May 1949 and published in the Calcutta Police Gazette, on 22-6-1949. On 8-2-52 the petitioner's name was included by a Selection Board in the list of officers fit for confirmation in the rank of Assistant Commissioner of Police. On 30-1-1954, the petitioner was appointed to act as Deputy Superintendent of Police, Enforcement Branch, Midnapore and the petitioner joined the same post on 10-2-1954. 2. On 24-7-1954 the petitioner was informed by a letter that he had been reverted to his substantive post of Inspector of Police with effect from 9-7-1954 on the ground that he was unsuitable for promotion to the post of Assistant Commissioner even on an officiating basis. His name was also struck off from the list of Inspectors fit for promotion to the rank of Assistant Commissioner. The petitioner challenges the above order on the following grounds: (a) The petitioner's reversion amounts to a reduction in rank because it amounted to a penalty so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it is admitted that it was an officiating appointment. On 30-1-1954 he was transferred from the Calcutta Police to the West Bengal Police by an order of the Government which is at p. 24 of Annexure A and runs thus: The Governor is pleased to appoint Sri Earn Chandra Choudhuri, Assistant Commissioner of Police, Calcutta, on leave, to act, until further orders as Deputy Superintendent of Police, Enforcement Branch, Midnapore, with effect from the date of his joining the post. By order of the Governor. S. N. Ray, Chief Secy, to the Govt. of West Bengal. Copy forwarded to the Accountant General, West Bengal for information in continuation of this Department endorsement............ The transfer is made in the public interest . 7. When the impugned order of reversion was made in July, 1954, the petitioner was thus holding the post of Deputy Superintendent of Police in the West Bengal Police Cadre. The order of reversion which was issued by the Under Secy, of the Home Department by his letter No. 392 GAC, dated 9-7-1954, addressed to the Commissioner of Police, Calcutta, (p. 28 of Annexure A) was as follows: ......Govt. have carefully considered the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank' within the meaning of Article 311(2) of the Constitution so that the order is void because no opportunity to show cause against such order was given to the petitioner, as required by that provision. The petitioner has, no doubt, been demoted to a lower post from a higher one by the impugned order. But it has been established by decisions of the highest authority that a mere reduction in the physical sense is not sufficient to attract the operation of Article 311(2); what is required is that such degradation must be by way of penalty. 10. It has been urged on behalf of the petitioner that the impugned order operates as a penalty for several reasons: (i) That it has been made on the ground of alleged unsuitability of the petitioner for the higher post; (ii) That it disqualifies the petitioner from holding -the higher post even on an officiating basis and thus debars him from any prospects of a better career for ever; (iii) That by striking off the name of the petitioner from the panel of Inspectors fit for promotion to the rank of Assistant Commissioner, it takes away from the Petitioner any chances of promotion to that higher rank in the future, besides demoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such reversion be misconduct, inefficiency, unsuitability or the like ((1963)IILLJ422SC Ibid). (ii). But even in cases of such reversion, that is, where the employee had no substantive right to the post or rank from which he has been reverted, Article 311(2) may be attracted if an additional factor is present, namely, that besides the physical degradation or reversion to the lower post the order for reduction also visits the servant with any penal consequences (p. 49. Ibid) ). On this point also, it is to be noted that in some earlier cases, (e.g., Balai v. N. Kay Choudhury, AIR1954Cal495 , Bhojraj v. Saurashtra Government, AIR 1952 San 40 (42) ) it was supposed that in order to attract Article 311(2), an indispensable condition was the intention or motive of the superior authority to punish the employee for some misconduct. This condition has not been approved by the Supreme Court in Parshottam's case, (1958)ILLJ544SC (ibid). The Supreme Court observed (p. 49) that what was crucial was whether the employee had a right to hold the post and, conversely, whether the Government had a right to terminate the service or reduce the employee in rank under the rules or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er post. For that, we must turn to the other points taken on behalf of the petitioner. (II) It has been seen from the passage just quoted from the decision in Purshottam's case. (1958)ILLJ544SC (p. 49, ibid) that one of the penal consequences which their Lordships envisaged as sufficient to attract Article 311(2) was: 'The stoppage or postponement of his future chances of promotion. According to the petitioner, the impugned order has the above effect inasmuch as it conveyed the decision of the Government that the petitioner: Is unsuitable for promotion to a post of Assistant Commissioner of Police even on an officiating basis. The test which is to be applied in order to find whether a person's future chances of promotion have been affected has been formulated by Sinha, J. in Dhajadhari v. Union of India, (1958)IILLJ392Cal , and I find myself in complete agreement therewith. Almost in every case where an employee is reverted from an officiating higher post because of inefficiency or unsuitability, his future chances would be indirectly affected because the authorities competent to promote him in future will certainly take the fact of previous rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is substantiated by the fact that the petitioner has never again been considered fit to officiate as Assistant Commissioner during the next four years he was in service before Superannuation. In my opinion, the impugned order is attended with a penal consequence within the meaning of the dictum of Parushottam case, (1958)ILLJ544SC and is, accordingly, void for non-compliance with Article 311(2) of the Constitution. III. On receipt of the impugned Government order which was contained in the letter No. 392-GAC./9-7-1954 addressed to the Commissioner of Police for implementation and communication to the petitioner, the Commissioner of Police forwarded the order at p. 26 of the Annexure, reproduced earlier. In this order, the Commissioner not only reproduced the contents of the Government order but added the following : His name is taken off list No. 1 of Inspectors fit for promotion to the rank of Assistant Commissioner. On behalf of the petitioner it has been contended that this also adds to the order of reversion a 'penal consequence' within the meaning of the dictum in Purushottam's case, (1958)ILLJ544SC . The stand taken on behalf of the Respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period between 9-7-1954 and 19-7-1954. It has been laid down both in Parshottam's case, (1958)ILLJ544SC (ibid) and in Union of India v. Jeewan Ram, AIR1958SC905 that loss of emoluments already earned by past service is a 'penal consequence' which would attract Article 311(2). In the case before me, though the order of reversion made by the Government, dated 9-7-1954 did not direct the reversion from any date prior to 9-7-1954 the Commissioner of Police, by his order dated 19-7-1954, did direct that the revision shall have effect from 9-7-1954 and from the petitioner's affidavit it appears that this order was actually communicated to him on 24-7-1954. It is also striking that the Inspector General, in pursuance of the above communication from the Commissioner of Police, by an order of his own dated September 2, 1954, gave effect to the order of reversion 'on paper' from 19-7-1954 (vide Ann. p. 32). Be that as it may, it is evident that at least up to 19-7-1954 the petitioner had rendered active service as Deputy Superintendent of Police, and that the order of reversion as it was given effect to by the Departmental superiors of the petitioner, deprive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven secured constitutional protection under Article 311, can be made by an inter-departmental correspondence. In Ghaio Mal's case, [1959]1SCR1424 (ibid) the question was whether a valid order granting a licence could be made on behalf of the Chief Commissioner of Delhi through an inter-departmental letter issued by the Under Secretary. The answer was in the negative and the Court concluded (p. 1439 of SCR) : (at p. 71 of AIR) that there had been no valid order granting a licence in the eye of law. The decision in Dattatreya y. State of Bombay, 1952CriLJ955 was referred to in support of the contention that though the letter did not purport to be made in the name of the Chief Commissioner, extraneous evidence could be adduced to show that the order had in fact been issued by the Chief Commissioner. It was held that the decision in Dattatray's case, 1952CriLJ955 was not applicable where there was no order at all but a-letter which did not even mention the Chief Commissioner. If the decision in Ghaio Mal's case, [1959]1SCR1424 be applicable to the facts of the case before me, it must be held that the letter at p. 28 of the Annexure of the communication of the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnor, even if the Rules of business of the standing orders made thereunder empowers the Chief Secretary to dispose of the master without placing it before the Minister. In my opinion, the impugned order fails for contravention of Article 166(1) of the Constitution. 13. Point (3). Conscious as I am that a plea of mala fide rarely succeeds I find that in the present case, the circumstances attending the impugned order are glaring enough to substantiate the allegation. it is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (T) that the authority making the impugned order did not apply its mind at all to the master in question (Vide L. J. J. D'Souza v. State of Bombay, 1956CriLJ935 ; or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the face of the order of Puranlal Lakhanpal v. Union of India 1958CriLJ283 . These principles have been applied by the Supreme Court in a case of reversion of a Government servant in the case of Sukhbans v. State of Punjab, (1963)ILLJ671SC , to which I shall have occasion to refer more fully hereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Bengal in this case, There is not the least of doubt that the petitioner would not have been reverted if the Commission had not given its advice to that effect. The reason is that the Government had prior to that advice more than fully considered the question of suitability of the petitioner who had also, on his part, complied with the requirements for promotion to the higher rank under the Departmental rules and regulations in force. (a) So far as the Departmental requirements are concerned, it is admitted in the counter-affidavit of the Under Secretary, dated 4-4-55, that the petitioner was first considered fit for promotion in an officiating capacity, (para 5) by a Selection Board consisting of the Commissioner of Police and the Deputy Commissioners of Police. These are the Departmental superiors of the petitioner who must have come to their decision upon a consideration of their personal knowledge as to the efficiency of the petitioner as well as the remarks on the confidential Roll of the petitioner along with those of the other officers considered by them. These are the superior authorities upon which the Government acted in subsequently appointing the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner's case and the views so long entertained by itself in the matter. In the foregoing background it is natural to inquire whether the Commission came to a contrary view upon the same materials as were before the Government, or the commission had before it any additional materials. In para 12 of the counter-affidavit filed by Suhas Ranjan, it had been stated that the Commission was asked to give its opinion with reference to the service records of the officers whose cases were sent up. Notwithstanding this, I was anxious to learn from the respondents if there was any other materials or consideration upon which the Commission, an independent body, might have been induced to hold a contrary opinion. The letter received by the Home Department from the Commission, dated 30-1-195.) has been shown to me. I am satisfied therefrom that the sole material upon which the Commission fanned its opinion was a Scrutiny of the records of service . There is also no case that any additional entries in the records were placed before the Commission. The same materials which were before the Government and the Departmental authorities was thus before the Commission. I have not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 8090 PSC/ 17-11-1953 addressed to the Chief Secretary, and para 12 of the counter-affidavit of Suhas Ranjan that all cases of such temporary and officiating promotions mast be referred to them). Let us now consider the action taken by the Government on receipt of the commission's recommendation that the petitioner should be reverted to his substantive rank (No. 539/P. S. C./30-1- 54)- In para 16 of the counter-affidavit of Suhas Ranjan is unequivocally stated : - It is because the Commission advised that the petitioner was riot fit for the post of Assistant Commission that the order for his reversion as Inspector of Police, Calcutta was passed. The Government did not refer back the case of the petitioner to the Commission for a reconsideration, pointing out the materials upon which Government had, over a course of long years, considered the petitioner fit to be promoted as Assistant Commissioner and also to be confirmed there- in, Nor is it staged that since the Government itself discovered additional materials the Government felt inclined to agree with the Commission, after a re-assessment of the merits of the petitioner's case. In my opinion, the counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s suitability for the higher rank after he had already served in that rank with credit for a long period of over five years (during which period he has earned six increments) simply because the Commission held a contrary view on the same materials is another circumstance showing that the Government did not apply its mind to 'the order of reversion they made. The charge of mala fides becomes stronger against the Government the larger the time lag between an order of officiating appointment and the order of reversion, particularly where the service record of the officer is remarkable. In my opinion, these circumstances go to establish mala fides on the part of the Government, in the light of observations of the Supreme Court; just quoted. II. There is another aspect of mala fides. In the confidential Report for 1953, at p. 33 of the Confidential Report Book, produced before me, there is an endorsement to this effect - This officer was transferred to W. B. P. under Government orders as a result of inquiry by Anti-Corruption Department. I have written to the Home Secretary tc note the result of the inquiry in the C. C. Roll for future reference. Sd. H. S. Choudhry, Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his judgment), the Governor had appointed the petitioner to act, until further orders, as Deputy Superintendent of Police, Enforcement Branch, Midnapore. The post of Deputy Superintendent is a post held in the Bengal Police Cadre under the Inspector-General, West Bengal, while the post of Assistant Commissioner is a post in the Calcutta Police Cadre under the Commissioner of Police. In July, 1954, when the order of reversion was made by the Government, the Petitioner was still in the Bengal Police, acting as Deputy Superintendent of Police. He was not recalled to the Post of Assistant Commissioner, for the purpose of issuing the order of reversion. He was reverted to the post of Inspector in the Bengal Police Cadre and in that Post he remained until the date of superannuation. As has been seen at p. 4, ante (para 7--Ed.), though the order described the petitioner as Officiating Assistant Commissioner of Police Calcutta, now temporarily employed as Deputy Superintendent of Police, the Government described the ground of reversion as follows: Tile Public Service Commission ......... who were consulted in the matter have advised that Shri Choudhury is unsuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58)ILLJ544SC (ibid) the case of a temporary appointment differs little from an officiating appointment because in neither case has the employee any substantive right to the higher post or rank to which he is appointed in a temporary or officiating basis. It is, therefore, not correct to urge that there could not be any reversion from the post of Deputy Superintendent to which he had been appointed on 30-1-1954. The real question for determination is whether the reversion from that appointment could be taken, in law, as a natural sequence of the reversion from the post of Assistant Commissioner. (ii) The contention on behalf of the respondents that the post and rank of a Deputy Superintendent is equivalent to that of a Commissioner of Police has been belied by the Civil List for 1952, produced on behalf of the petitioner at the hearing. It appears therefrom that the post of Deputy Superintendent belongs to a separate cadre with a separate pay scale both at the start and the finish and with different stages of increment and efficiency bar. This is also evident from the Government letter dated 31-5-1954 at Ann. Rule 6, by which adjustment of the current pay of the petitioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch thing was operating in the mind of the authorities is evident from Annexure A p. 29, by which he was ordered to be posted at some station away from predominantly industrial or railway areas . These are not matters pertinent to the application of Section 3 of the above Act. (iii) As referred to earlier (vide Ann. O) his pay etc., after the transfer was allowed not on the basis of his membership of the Calcutta Police but on the basis of membership of the West Bengal Police, and the petitioner had to make a representation (Ann. P), complaining of his losses. (iv) The petitioner remained in the West Bengal Police until the date of his superannuation in 1958 and the order of discharge then made did not purport to discharge him from the Calcutta Police force but from the post of Inspector of Police, Purulia and the order was made by the Superintendent of Police of Purulia (Ann. R. 10). (v) The most remarkable thing to be noticed in this connection is Ann. R. 12, a Letter addressed by the Government to the Inspector-General of police, West Bengal, on 21-12-57, on the eve of the superannuation of the petitioner: The undersigned is directed to say that Government authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of that Article, without giving him an opportunity to show cause; (ii) It contravenes Article 166(1) of the Constitution; (iii) It is mala fides; (iv) It is without jurisdiction. 17. Though it has not been contended on behalf of the respondents that the petition should fail on the ground that the petitioner has since retired from service under the respondent, I should mention that the petition has not been rendered meaningless or infructuous by reason of the retirement of the petitioner because if the impugned order be quashed, he would get relief in respect of arrears of pay and pension on the footing that , he has never been reverted from the post of Deputy Superintendent, West Bengal Police. In this respect, I would like to refer to the observations of the Division Bench in Rabindra v. General Manager, Eastern Railway, 59 Cal WN 859 at p. 869 : 18. In the result, the petition be allowed and the impugned order be quashed by a Writ of certiorari. Let a Writ of mandamus be also issued upon the respondents not to give effect to the impugned order so as to revert the petitioner from the post of Deputy Superintendent, West Bengal Police, which the petitioner was holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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